Lakshmanan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1654

FEDERAL CIRCUIT COURT OF AUSTRALIA

Lakshmanan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1654

File number(s):	CAG 3 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	2 June 2021
Catchwords:	MIGRATION ­ appeal from Administrative Appeals Tribunal ­ Student (Subclass 500) visa ­ - non-attendance by Applicant at hearing ­- non-compliance by Applicant with Court orders -­ application dismissed ­ costs.
Legislation:	Federal Circuit Court Rules 2001 (Cth) rr 13.03A, 13.03B, 13.03C
Number of paragraphs:	12
Date of hearing:	2 June 2021
Place:	Canberra
Applicant:	No appearance
Solicitor for First Respondent:	Sparke Helmore Lawyers

ORDERS

CAG 3 of 2021

BETWEEN:

MUTHUKUMAR LAKSHMANAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	2 JUNE 2021

THE COURT ORDERS THAT:

1.The Application filed 8 February 2021 be dismissed.

2.The Applicant pay the Minister’s costs in the fixed amount of $6,500.

REASONS FOR JUDGMENT

JUDGE W J NEVILLE:

1. On 2^nd June 2021, I delivered brief reasons, ex tempore, following which Orders were made dismissing the Application.  Those reasons, which follow, have been revised slightly from the transcript.[1]

   [1] There has been some slight delay in finalising these reasons because I was on medical leave for three weeks, and a little later, a short period of general leave.

2. The Applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) dated 4^th January 2021.  The Tribunal affirmed a decision of a Delegate of the First Respondent Minister (“the Minister”) to refuse the Applicant a Student (Subclass 500) Visa.[2]

   [2] The First Respondent Minister’s Submissions, at pars.2 – 3, noted that the current Application was out of time by one day. In the circumstances, no objection was taken to the Application proceeding, on the basis that the Applicant formally sought an extension of time pursuant to the terms of s.477(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

3. Regrettably, the Applicant did not appear at the hearing.  The matter was called; there was no response to the call.  Evidence of service upon the Applicant of the Minister’s Response and Submissions was on the Court file.  Unfortunately, this was not the first occasion when the Applicant has not appeared.

4. In pars.5 – 17 of the Minister’s Submissions, the procedural history of the matter was outlined.  This included that the Applicant did not attend the hearing before the Tribunal on 8^th December 2020.  The submissions also recorded that the Applicant was notified about the procedure to have the matter reinstated.  The time within which such reinstatement could be made, namely 14 days, was relevantly notified to the Applicant.  No such Application was made.  Accordingly, the decision of the Tribunal made on 8^th December 2020 was confirmed.  It is only from that “confirmation decision” that the current Application is made.

5. In light of the Applicant’s non-attendance at the hearing on 2^nd June 2021, I need only note the following.

6. Rule 13.03C of the Federal Circuit Court Rules 2001 provides as follows where there is default in the appearance of a party:

   Default of appearance of a party

   (1)  If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:

   (a)  adjourn the hearing to a specific date or generally;

   (b)  order that there is not to be any hearing, unless:

   (i)  the proceeding is again set down for hearing; or

   (ii)  any other steps that the Court or the Registrar directs are taken;

   (c)  if the absent party is an applicant—dismiss the application;

   (d)  if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim;

   (e)  proceed with the hearing generally or in relation to any claim for relief in the proceeding.

   (2)  If a party to a proceeding is absent from a hearing, the Court or a Registrar may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court or the Registrar thinks just.

7. Given the Applicant’s failure to appear at the hearing, I proceeded to deal with the matter pursuant to this Rule.  Accordingly, the Application was dismissed and an Order for costs was made in the Minister’s favour in the sum of $6,500.00.

8. In addition to the default of the Applicant’s non-attendance, the Applicant also failed to comply with consent Orders made by the Court on 9^th March 2021 regarding the filing of submissions.  As such, the Applicant thereby also failed to comply with an Order of the Court for the purposes of Rule 13.03A of this Court’s Rules, which provides as follows:

   When a party is in default

   (1)  For rule 13.03B, an applicant is in default if the applicant fails to:

   (a)  comply with an order of the Court in the proceeding; or

   (b)  file and serve a document required under these Rules; or

   (c)  produce a document as required by Part 14; or

   (d)  do any act required to be done by these Rules; or

   (e)  prosecute the proceeding with due diligence.

9. Rule 13.03B provides for the Court to make Orders in circumstances of default, thus:

   If an applicant is in default, the Court may order that:

   (a)  the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

   (b)  a step in the proceeding be taken within the time limited in the order; or

   (c)  if the applicant does not take a step in the time mentioned in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.

10. In the light of the Applicant’s default in failing to file material as directed by the Court, if more be needed, the Rules set out above provide further bases for the Court to dismiss his Application.

11. Further, I accept and adopt the Minister’s submissions, including that the Application was “doomed to fail” for the reasons there given.  In my view, no jurisdictional error was identified by the Applicant in the brief material filed by him.  What he effectively was seeking was nothing more than for the Court to undertake impermissible merits review.

12. The Orders sought by the Minister for the Application to be dismissed and an Order for costs in the fixed sum of $6,500, should be made. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.

Associate:

Dated:       21 July 2021